David Abrahamsson et al.

Patent Trials and Appeals Board

Nov 3, 2020

2020001888 (P.T.A.B. Nov. 3, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/497,009 03/19/2012 David Abrahamsson 122631-5006 2004
9629 7590 11/03/2020
Morgan, Lewis & Bockius LLP (WA)
1111 Pennsylvania Avenue, N.W.
Washington, DC 20004
EXAMINER
SCHLEIS, DANIEL J
ART UNIT PAPER NUMBER
1784
NOTIFICATION DATE DELIVERY MODE
11/03/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
karen.catalano@morganlewis.com
patents@morganlewis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte DAVID ABRAHAMSSON,
RICHARD WESTERGÅRD, and TORKEL STENQVIST
__________

Appeal 2020-001888
Application 13/497,009
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellant1 filed an appeal under 35 U.S.C. § 134 from an Examiner’s
decision finally rejecting claims 12–41. A hearing was held on October 20, 2020.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. §
1.42. The Appellant identifies the real party in interest as GRÄNGES SWEDEN
AB. Appeal Brief dated July 18, 2019 (“Br.”), at 3.
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The claimed subject matter is directed to a multi-layered aluminum alloy
brazing sheet and a heat exchanger comprising the aluminum alloy brazing sheet.
The brazing sheet comprises a core material, an intermediate layer comprising an
Al-Si braze alloy on at least one side of the core material, and a covering layer on
top of the intermediate layer. The covering layer comprises, inter alia, 0.01 to 1.0
wt-% bismuth (Bi).
The Appellant discloses that adding bismuth to the covering layer
“enhance[s] the brazing performance” of the aluminum alloy brazing sheet. Spec.
3, l. 35–4, l. 3. The Appellant also discloses that adding bismuth to the covering
layer eliminates the need to add bismuth to the intermediate braze alloy layer,
which is said to reduce the risk of intergranular corrosion caused by bismuth
entering the core alloy along grain boundaries during both brazing sheet production
and brazing. Spec. 4, ll. 20–26.
Representative claim 12 is reproduced below from the Claims Appendix of
the Appeal Brief. The limitation at issue is italicized.
12. A multi layered aluminum alloy brazing sheet, comprising:
a core material;
an intermediate layer on at least one side of the core
material, the intermediate layer comprising an Al--Si braze
alloy; and
a thin covering layer on top of the intermediate layer,
wherein the core material and the covering layer has a higher
melting temperature than the Al--Si braze alloy,
wherein the covering layer comprising
Bi 0.01 to 1.0 wt-%,
Mg ≤0.05 wt-%,
Mn ≤1.0 wt-%,
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Cu ≤1.2 wt-%,
Fe ≤1.0 wt-%,
Si ≤4.0 wt-%,
Ti ≤0.1 wt-%,
Zn ≤6 wt-%,
Sn ≤0.1 wt-%,
In ≤0.1 wt-%, and
unavoidable impurities each in amounts less than
0.05 wt-%, and a total impurity content of less than 0.2 wt-%,
and a balance of aluminum.
Br. 20–21.
The claims on appeal stand rejected as follows:
(1) claims 12–23, 25–28, 30–33, and 35–41 under 35 U.S.C. § 103(a) as
unpatentable over Wittebrood2 in view of Anderson et al.,3 as evidenced by Schoer
et al.,4 Dulac et al.,5 Takeno et al.,6 and Wittebrood et al.;7 and
(2) claims 12–34 and 37–40 under 35 U.S.C. § 103(a) as unpatentable
over Robinson8 in view of Anderson, as evidenced by Schoer, Dulac, Takeno, and
Wittebrood 584.

2 WO 2008/155067 A1, published December 24, 2008 (“Wittebrood”).
3 US 4,146,163, issued March 27, 1979 (“Anderson”).
4 US 4,241,148, issued December 23, 1980 (“Schoer”).
5 US 2007/0099023 A1, published May 3, 2007 (“Dulac”).
6 US 6,635,360 B2, issued October 21, 2003 (“Takeno”).
7 US 6,568,584 B2, issued May 27, 2003 (“Wittebrood 584”).
8 US 3,917,151, issued November 4, 1975 (“Robinson”).
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B. DISCUSSION
1. Rejection (1)
The Examiner finds Wittebrood discloses an aluminum alloy brazing sheet
as recited in claim 12 with the exception of including bismuth in the covering
layer. Final Act. 3–4.9 Referring to Anderson Figure 1, the Examiner finds
Anderson discloses a brazing sheet including aluminum core 10, at least one
aluminum brazing layer 20 provided on aluminum core 10, and aluminum layers
30, wherein layers 30 each correspond to the covering layer recited in claim 12.
Final Act. 5; see also Anderson Fig. 1 (showing layer 30 disposed over layer 20).
The Examiner finds Anderson discloses adding up to 0.2 wt% bismuth to layer 30
to improve brazing components. Final Act. 5 (citing Anderson, col. 3, ll. 57–62).
The Examiner concludes that it would have been obvious to one of ordinary skill in
the art to add up to 0.2 wt% bismuth to Wittebrood’s covering layer to “improv[e]
the brazing performance of the material” as disclosed in Anderson. Final Act. 5.
The Appellant recognizes that Wittebrood and Anderson each have “(i) an
Al-core and (ii) an Al-Si brazing layer with low Mg content.” Br. 9. Thus, the
sole issue on appeal is whether the Examiner’s proposed modification of adding
bismuth to Wittebrood’s covering layer, based on the teachings of Anderson,
constitutes reversible error.
The Appellant argues that Wittebrood teaches that excess magnesium should
be included when bismuth is added “to avoid Bi separating out of the grain
boundaries.” Br. 9 (citing Wittebrood 7, ll. 3–10). The Appellant argues that
Anderson’s covering layer includes up to 1.0 wt% magnesium (Mg), with a range
of 0.1 to 0.8 wt% being a typical amount. Br. 9 (citing Anderson, col. 3, ll. 53–

9 Final Office Action dated October 26, 2018.
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54). However, in contrast to Anderson’s covering layer, the Appellant argues that
Wittebrood’s covering layer is Mg-free. Br. 10. Thus, according to the Appellant,
when modifying Wittebrood . . . by Anderson to include Bi as
proposed in the rejection, one of ordinary skill would have to make
the following further choice: (a) operate contrary to other teachings in
Anderson (as well as in Wittebrood) and exclude the addition of Mg
when modifying to add Bi, or (b) operate contrary to the teachings in
Wittebrood . . . to be Mg-free and add the Mg as well as the Bi as
taught by Anderson.
Br. 10 (emphasis omitted). The Appellant argues that “[b]oth choice (a) and
choice (b) are inconsistent with the one or more of the references in the
combination.” Br. 10.
The Appellant’s arguments are not persuasive of reversible error.
Wittebrood discloses that when bismuth is added to the brazing material layer (i.e.,
layer 1 in Wittebrood Fig. 1A), not the covering layer, excess magnesium is added
to stop separation at the grain boundaries. Wittebrood 7, ll. 3–11. The Appellant
does not direct us to any evidence showing that adding bismuth to a covering layer
causes the same problem and thus necessitates the addition of magnesium.
Compare Br. 14 (contending, in a different argument, that one must properly
account for the specific layer in which bismuth is disclosed and the function of the
layer within the brazing sheet).
Moreover, although the covering layer disclosed in Wittebrood is Mg-free, it
is also Bi-free. Thus, even if the teachings in Wittebrood are applicable to a
covering layer, we find that one of ordinary skill in the art would have followed
Wittebrood’s teachings and included excess Mg when adding bismuth to the
covering layer. Wittebrood discloses that an “excess Mg content . . . is 0.07% or
less, and preferably 0.05% or less.” Wittebrood 7, ll. 4–5. Similarly, Anderson
discloses that “up to 1.0 wt.%” magnesium can be present in the covering layer.
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Anderson, col. 3, ll. 52–54. That amount encompasses the claimed range.10 See In
re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) (a prima facie case of
obviousness exists when the claimed ranges are encompassed by the prior art).
The Appellant also argues that one of ordinary skill in the art would not have
included bismuth in Wittebrood’s covering layer because bismuth would not have
been expected to have any effect on wetting. Br. 11.
In the rejection on appeal, the Examiner relies on Schoer, Dulac, Takeno,
and Wittebrood 584 to show that “[i]t is well known in the art that the addition of
bismuth improves the wettability properties of aluminum alloys.” Final Act. 6.
The Examiner, however, also relies on Anderson to show that adding bismuth to
Wittebrood’s covering layer would “improv[e] the brazing performance of the
material.” Final Act. 5; see also Br. 13 (recognizing Anderson discloses that
bismuth may be added for “‘improved brazed components’”); Spec. 3, l. 35–4, l. 3
(disclosing that adding bismuth to the covering layer “enhance[s] the brazing
performance” of Appellant’s aluminum alloy brazing sheet). The Examiner’s
reliance on Anderson alone is sufficient to satisfy the Examiner’s initial burden of
presenting a prima facie case of obviousness. Thus, it is not necessary to address
the Examiner’s additional finding that bismuth was known to improve the
wettability properties of aluminum alloys.
However, the Appellant argues that “unless Anderson provides evidence that
one of ordinary skill in the art would have added bismuth to the covering layer of
. . . Wittebrood . . . to modify the surface tension thereof (as articulated [in the

10 Anderson discloses that a typical amount is in the range of 0.1 to 0.8 wt%.
Anderson, col. 3, ll. 52–54. However, it is well-settled that “all disclosures of the
prior art, including unpreferred embodiments, must be considered.” In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976).
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previous] Board Decision),[11] then the current rejections suffer the same
deficiencies as the rejections overturned by the Board.” Br. 12 (emphasis omitted).
In our previous Decision, claim 12 was rejected under 35 U.S.C. § 103(a) as
unpatentable over Wittebrood in view of Dulac, not Anderson. Decision 3. The
Examiner’s reason for combining Wittebrood and Dulac was to increase the
wettability of the surface of Wittebrood’s covering layer. Decision 4. In contrast,
the Examiner relies on Anderson in the current rejection on appeal to show that
adding bismuth to Wittebrood’s covering layer would have been expected to
improve brazing performance. Final Act. 5 (citing Anderson, col. 3, ll. 57–62).
Thus, any failure of Anderson to teach that bismuth modifies the surface tension of
a covering layer is not persuasive of reversible error.
Next, the Appellant argues that Anderson is insufficient to support the
obviousness rejection on appeal because the outermost layers disclosed in
Wittebrood and Anderson have different functions. Br. 12–13.
The Appellant’s argument is not persuasive of reversible error. Wittebrood
and Anderson both disclose a brazing sheet comprising a core, a brazing layer
provided on the core, and a covering layer provided on the brazing layer. See, e.g.,
Wittebrood Fig. 1A; Anderson Fig. 1. Thus, the covering layers disclosed in
Wittebrood and Anderson both perform the same function, i.e., covering a brazing
layer. We recognize that the covering layer in Anderson is said to eliminate certain
problems during the rolling operation. Anderson, col. 4, ll. 18–21. However, both
Anderson and Wittebrood roll the core, the brazing layer, and the covering layer
together to fabricate a brazing sheet. See Wittebrood 11, ll. 16–27; Anderson, col.
3, l. 63–4, l. 21.

11 Decision on Appeal in Appeal 2017-003117, dated April 2, 2018 (“Decision”).
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Finally, the Appellant argues that the claimed invention, comprising bismuth
in the covering layer, “gave surprisingly excellent effect at brazing.” Br. 15–16
(citing Declaration of Dr. Richard Westergård dated April 7, 2015 (“Westergård
Decl.”), at ¶ 16). Dr. Westergård states:
[I]t was surprising to find that bismuth in the cover layer instead of in
the braze alloy cladding gave excellent effect at brazing and even
more surprising that this affect could be achieved with lower total
amount of bismuth in the brazing sheet (since the cover layer is much
thinner than the braze alloy cladding).
Westergård Decl. ¶ 16.
Significantly, Dr. Westergård does not provide a factual basis to support his
statement that the claimed invention provides “surprising” results. See In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“unexpected results must be
established by factual evidence”).
On balance, a preponderance of the evidence of record supports the
Examiner’s conclusion of obviousness. Therefore, the obviousness rejection of
claim 12–23, 25–28, 30–33, and 35–41 based on the combination of Wittebrood
and Anderson, as evidenced by Schoer, Dulac, Takeno, and Wittebrood 584, is
sustained.12
2. Rejection (2)
Claims 12–34 and 37–40 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Robinson and Anderson, as evidenced by
Schoer, Dulac, Takeno, and Wittebrood 584. In that rejection, the Examiner finds
that Robinson, like Wittebrood, discloses an aluminum alloy brazing sheet as
recited in claim 12, with the exception of including bismuth in the covering layer.

12 The Appellant does not present arguments in support of the separate patentability
of any of claims 13–23, 25–28, 30–33, and 35–41.
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Final Act. 9–10. The Examiner relies on Anderson to show that it would have
been obvious to one of ordinary skill in the art to add bismuth to Robinson’s
covering layer to improve brazing performance. Final Act. 11.
In the Appeal Brief, the Appellant’s arguments against the combination of
Robinson and Anderson are the same as the arguments presented against the
combination of Wittebrood and Anderson. For the reasons discussed above, those
arguments are not persuasive of reversible error. Therefore, the obviousness
rejection of claims 12–34 and 37–40 based on the combination of Robinson and
Anderson, as evidenced by Schoer, Dulac, Takeno, and Wittebrood 584, is
sustained.
C. CONCLUSION
The Examiner’s decision is affirmed.
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
12–23, 25–
28, 30–33,
35–41
103(a) Wittebrood,
Anderson, Schoer,
Dulac, Takeno,
Wittebrood 584
12–23, 25–
28, 30–33,
35–41

12–34, 37–40 103(a) Robinson,
Anderson, Schoer,
Dulac, Takeno,
Wittebrood 584
12–34, 37–40
Overall
Outcome
12–41

No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED